Cheating Down on the Border
A kickback scheme among federal agents in Arizona results in some charges--and plenty of questions
Larry Davenport never thought he had an easy job. For 14 years as an agent of the U.S. Border Patrol, he tracked down illegal immigrants and drug smugglers in the deserts of Texas and Arizona and spent many a lonely night at checkpoint trailers along the Mexican border. But in late 2000, soon after he was detailed to the Border Patrol station in Douglas, Ariz., Davenport quickly learned how tough his job could be. He was denied a promotion, he says, and became persona non grata among the station's senior managers.
His crime? Davenport says he became a marked man after he and another agent, Willie Forester, disclosed to Justice Department criminal investigators that some Border Patrol agents temporarily assigned to the Douglas station had accepted kickbacks from supervisors who rented rooms to them and from hotels anxious to get their business. Their charges ultimately led to several investigations and the disciplining of 23 Border Patrol agents and three low-level supervisors. Border Patrol records show that at [least] 19 other agents were involved in the scheme but were not disciplined. Two agents indicted in the case are awaiting trial in Arizona. A federal investigation of similar charges, at a Border Patrol facility in Charleston, S.C., led to disciplinary action against nine agents.
Coverup? For Davenport and Forester, however, the story doesn't end there. Both men continued to press their allegations with the U.S. Office of Special Counsel, the government agency in Washington that protects whistle-blowers against reprisals. In papers filed with that office, the two men alleged that David Aguilar--now the head of the Border Patrol in Washington, directing the enforcement efforts of 11,000 agents nationwide--and senior managers in Douglas were aware of the kickback scheme but did nothing to stop it. At the time, Aguilar was the chief patrol agent in Tucson. The whistle-blowers also charged that the Department of Homeland Security, which investigated their allegations, failed to pursue other charges against Border Patrol managers who, they say, participated in the scheme.
Now, the Office of Special Counsel, after reviewing the case for more than two years, has rendered its verdict, one that is sharply critical of both the Border Patrol and its parent agency, the Department of Homeland Security. In a letter and analysis of the case that he sent to President Bush late last week, Special Counsel Scott Bloch said that the agency "failed to thoroughly investigate the whistle-blowers' allegations" against senior Border Patrol officials. He concluded: "It is simply not credible that 45 employees at a single Border Patrol station could engage in a pattern of conduct sufficiently egregious to warrant severe discipline without the knowledge of management." In a separate statement to U.S. News, Bloch said that there was "a real risk of creating the appearance of a whitewash." Bloch did not specifically address questions about Aguilar, but included in the material he sent to the president are the allegations made against Aguilar and some of his close associates.
Denials. Through a spokesman, Aguilar strongly denied the allegations that he knew of the kickback scheme and did nothing about it. Aguilar, the spokesman said, did not engage in any effort to cover up the matter. In a signed statement he gave to federal investigators last year while he was still running the Tucson region, Aguilar recounted how he first learned of the allegations from senior managers at the Douglas station. But, he said, he could "not recall the exact date that [the] allegations . . . were first brought to my attention."
Aguilar runs an agency that is a critical component in the nation's war on terrorism, one faced with a daunting task. Among their other duties, agents must cover a 4,000-mile border with Canada and 2,000 miles along the Mexican border. It's tough work, especially on the Mexican border, dealing with illegal immigrants, drug smugglers, and potential terrorists.
Aguilar was named head of the Border Patrol in July of last year. Before that, he served as the chief patrol agent for the Tucson region, which includes the Douglas station and covers a 260-mile stretch along the U.S.-Mexico border. The kickback scheme in Douglas took place on Aguilar's watch. What happened is this: Dozens of agents detailed to Douglas to crack down on illegal immigration accepted kickbacks from some supervisors, who rented them places to stay, or from hotel or apartment owners. Some agents, detailed to Douglas, filed expense reports claiming they had paid their full $55-a-day housing allowance when they had actually paid less. Property owners furnished them with a receipt for $55 but kicked back anywhere from $8 to $15 a day, several federal investigations said.
Davenport was one of the agents assigned to work in the Douglas station. Too bad for the Border Patrol, because Davenport soon learned, he says, that some agents who were supposed to enforce the law were breaking it. The way Davenport tells it, he got his first inkling that something was wrong when he first arrived in Douglas, in October 2000. At an orientation meeting for newly detailed agents at the National Guard Armory there, he says, he was talking with Aguilar and two other managers when they were approached by two supervisors who urged Davenport to rent living quarters from yet another supervisor. "I said it was unethical for a Border Patrol agent to have business relations with a subordinate," Davenport recalled in an interview. He says nothing was mentioned about kickbacks.
Not long after, however, Davenport learned of the kickback scheme when a private homeowner who was renting a room to him left $240 of Davenport's rental payment at his office. He says [he] returned the funds to the man. Soon, he and his immediate supervisor, Forester--also outraged by the kickbacks--began collecting information on the scheme. Davenport says that another agent, Russ Jensen, who rented a house to a detailed agent, gave him a memo he had written to Aguilar complaining that the agent had demanded a kickback. Davenport turned the memo over to the Tucson office of the Justice Department's inspector general in February 2001, he said.
"Burden." In an interview, Jensen confirmed that he wrote a memo to Aguilar about the alleged kickback but said a copy of a memo in his office computer was dated May 11, 2001, which is three months after Davenport says he took the document to the Justice Department. Jensen said he isn't sure the May 11 memo is the same document he sent to Aguilar. In any event, Jensen said, he was never interviewed by federal investigators who examined the kickback allegations.
Both Davenport, who lives in the Dallas area, and Forester, now residing in Las Vegas, left the Border Patrol three years ago. Davenport works for another law enforcement agency, and Forester operates his own business.
In his report to President Bush, Special Counsel Bloch detailed the history of the whistle-blowers' efforts to expose the wrongdoing. He was sharply critical of the agencies that investigated the allegations--the Justice Department's inspector general and the Department of Homeland Security's Bureau of Customs and Border Protection. Both agencies, however, say that they conducted thorough and careful investigations.
The Justice Department's inspector general, in a report issued in January 2003, detailed a serious pattern of misconduct, but Bloch's report accused the inspector general's office of dragging its feet. The inspector general, he said, initiated an investigation seven months after Davenport and Forester made their allegations--and then only after, Bloch wrote, "the whistle-blowers reported their allegations" to Rep. Jim Kolbe, an Arizona Republican. Kolbe demanded the inquiry. In an interview, Kolbe said Bloch's findings "illustrate the need" for homeland security officials "to get to the bottom of these things."
In his analysis, Bloch said that even after the Justice Department urged "strong and immediate" disciplinary action against wrongdoers, the Border Patrol refused to act. He cited a memo written in 2003 by a personnel official in what was then the Immigration and Naturalization Service, which then controlled the Border Patrol. The official wrote that it would be an "administrative burden" to discipline the offenders. "Thus, Border Patrol decided not to discipline federal law enforcement employees who broke the law because it would be administratively burdensome," Bloch told the president.
Given that kind of conduct, Bloch said, the special counsel staff demanded further investigation in November 2003. By that time, the Border Patrol had merged into the new Department of Homeland Security, as an arm of the Bureau of Customs and Border Protection. In the next year, prodded by the special counsel's office, the customs agency conducted two reviews. Neither satisfied Bloch.
In the end, while some agents and a few supervisors were disciplined, he wrote, the investigations did not pursue evidence indicating that some senior managers at the Douglas station were aware of the kickback scheme. Bloch says Davenport maintains that he reported his concerns to three senior managers at Douglas but was told to "mind his own business."
Bloch also says investigators appeared to have "uncritically accepted" the assertions of senior managers that they were unaware of the kickback scheme. "The agency appears to have discounted without justification evidence implicating management and supervisory personnel in the wrongdoing," he said. Moreover, Bloch wrote, investigators "flouted [his office's] specific request that the whistle-blowers be interviewed regarding their allegations."
Despite the strong support given to them by Bloch and his staff, Davenport and Forester question whether all the facts about the Douglas episode will ever come to light. "Somebody here in Las Vegas, they rob a store of $20, they get 20 years in jail," Forester says. "A lot of these guys stole money, and they got slapped on the wrist. What happened to the integrity of the U.S. Border Patrol?"
This story appears in the June 6, 2005 print edition of U.S. News & World Report.